Appeal No. 1999-0400
Application No. 08/316,938
optimal agglomerate characteristics as urged by the appellants
(see page 19 in the main brief).
In Example 5, Edwards describes a spheronizing container
(glass jar) rotational speed of 100 rpm. Without additional
information, this speed cannot be converted to meters per
second (m/s) for comparison with the speed range set forth in
claim 15. Its disclosure, however, demonstrates a recognition
by Edwards that the rotational speed of the spheronizing
container is a factor contributing to the quality of the
spheronized agglomerates. In cases where the difference
between the claimed invention and the prior art is some range
or other variable within the claims, the patent applicants must
establish show that the particular range is critical, generally
by showing that the claimed range achieves unexpected results
relative to the prior art. In re Woodruff, 919 F.2d 1575,
1578, 16 USPQ2d 1934, 1936-37 (Fed. Cir. 1990). The appellants
have made no such showing.
Therefore, we shall sustain the standing 35 U.S.C. §
103(a) rejection of claim 15 as being unpatentable over Edwards
in view of Szczesny, Edmonds, Bremer and Gibson.
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